KEITH L. MILLER, Individually and as Trustee of the MRFS NOMINEE TRUST, v. CITY OF GLOUCESTER.

Keith L. Miller, Individually (Miller) and as Trustee of the MRFS Nominee Trust (Trust), filed a Verified Complaint (Complaint) bringing a single cause of action under G.L. c. 240, § 14A, to challenge the validity of a special permit granted in 2015 by the City Council of the City of Gloucester (City). The Complaint suffers from multiple defects. First, an appeal brought under G.L. c. 40A, § 17, not a claim under G.L. c. 240, § 14A, is the exclusive remedy for a person aggrieved by a decision of a special permit granting authority. Further, Miller seeks untimely relief which G.L. c 240, § 14A, does not empower this court to grant. Finally, having already brought a § 17 appeal in the Essex County Superior Court, which was adjudicated and is currently pending on appeal, Miller is estopped under the doctrine of claim preclusion from relitigating the same claim under different statutory authority in the Land Court. As discussed below, the City's Motion for Judgment on the Pleadings is allowed and the claims set forth in the Complaint are dismissed with prejudice.

Procedural History

The Verified Complaint (Compl.) in this action was filed on December 8, 2017. The Defendant's Answer to Plaintiff's Verified Complaint was filed on January 10, 2018. A case management conference was held on January 19, 2018, at which the Assented to Motion of Plaintiff, Keith L. Miller, to Join Keith L. Miller, Trustee, as Indispensable Party (Mot. to Join) was filed and allowed but the court. The Defendant's Motion for Judgment on the Pleadings and Defendant's Memorandum in Support of Its Motion for Judgment on the Pleadings (Def's. Mem.) were filed on March 5, 2018. The Opposition of Plaintiff to Defendant's Motion for Summary Judgment, Affidavit of Keith Miller, and Plaintiff's Notice of Intent to Treat Defendant's Motion to Dismiss Under Mass. R. Civ. P. Rule 12(C) as Rule 56 Motion for Summary Judgment were filed on April 2, 2018. The court heard the Defendant's Motion for Judgment on the Pleadings on April 10, 2018, and took the matter under advisement. This Memorandum and Order follows.

Standard for Motion for Judgment on the Pleadings

A motion for judgment on the pleadings under Mass. R. Civ. P. 12(c) is actually a motion to dismiss for failure to state a claim upon which relief can be granted, and is analyzed under the standard for motions to dismiss. Jarosz v. Palmer, 436 Mass. 526 , 529-530 (2002). The court accepts as true well-pleaded factual allegations and reasonable inferences drawn therefrom, Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43 , 45 (2004), but does not accept "legal conclusions cast in the form of factual allegations." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 633 (2008), quoting Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); see Jarosz, 436 Mass. at 529-530. Generally, if matters outside the pleadings are presented to and not excluded by the court, the motion will be treated as a motion for summary judgment. Mass. R. Civ. P. 12(b), 12(c). The court may, however, take into account matters of public record and documents integral to, referred to, or explicitly relied on in the complaint, whether or not attached, without converting the motion to a motion for summary judgment. Marram, 442 Mass. at 45 n. 4; Schaer, 432 Mass. at 477; Reliance Ins. Co. v. City of Boston, 71 Mass. App. Ct. 550 , 555 (2008); Shuel v. DeIeso, 16 LCR 329 , 329 n.2 (2008). Therefore, the court will accept as true the factual (but not legal) allegations of the Complaint for the purposes of the Motion for Judgment on the Pleadings, and will consider the exhibits attached to the Complaint and the various recorded instruments referenced in the Complaint. [Note 1]

Miller has requested the court to convert this Motion for Judgment on the Pleadings to a motion for summary judgment. That is not necessary. The court can rely on the facts set forth in the complaint and only on documents attached to the pleadings and those additional documents attached to the Defendant's Memorandum in Support of Its Motion for Judgment on the Pleadings, all of which are public record and none of which are disputed. Any additional materials submitted by Miller are not relevant to the legal issues raised by the Motion for Judgment on the Pleadings. Miller's request is therefore denied. [Note 2]

Undisputed Facts

The following facts are undisputed:

1. Miller as Trustee of the Trust owns property located at 23, 30, and 35 Jebeka Lane, Gloucester, Massachusetts. Compl. ¶ 1; Mot. to Join.

2. By a Decision dated August 11, 2015, and filed with the City Clerk on August 13, 2015 (Decision), the City Council of the City of Gloucester granted a special permit (Special Permit) under the Zoning Ordinance of the City of Gloucester (Ordinance) for the "construction, operation and maintenance of a Personal Wireless Service Facility (Tower)." Compl. ¶¶ 14-17 & Exh. B.

3. On August 27, 2015, Miller filed a complaint in the Essex County Superior Court (Superior Court), Civil Action No. 1577-CV-01439 (Superior Court Action), appealing the Decision pursuant to G.L. c. 40A, § 17. In the Superior Court Action complaint, Miller sought to have the Special Permit annulled, sought a declaratory judgment that the City exceeded its authority under the Ordinance, and sought a declaratory judgment invalidating a variance issued by the Zoning Board of Appeals of the City of Gloucester on December 18, 2014 (ZBA Decision). Compl. ¶ 20; Def's. Mem. Exhs. 2-3.

4. Miller's complaint in the Superior Court Action alleged, inter alia, that the Decision exceeded the authority of the City Council under the Ordinance by permitting the Tower to be constructed at 130 feet tall in a zoning district where "the maximum height…is eighty (80) feet, plus or minus." Def's. Mem. Exh. 2.

5. On January 15, 2016, the Superior Court dismissed Miller's claim for declaratory judgment in the Superior Court Action as it pertained to the ZBA Decision, finding that "Miller failed to timely appeal the ZBA's December Decision, in accordance with the twenty-day period set forth in G.L. c. 40A, § 17. He cannot, now, use the declaratory judgment statute to circumvent this requirement." Def's. Mem. Exh. 3.

6. In an Order dated January 11, 2018, the Superior Court dismissed the Superior Court Action, finding that Miller did not have standing to contest the Special Permit under G.L. c. 40A, § 17. Def's. Mem. Exh. 4. The judgment of dismissal in the Superior Court Action was docketed on January 19, 2018. Def's. Mem. Exh. 5.

7. Miller filed a notice of appeal in the Superior Court Action on February 9, 2018. Def's. Mem. Exh. 5.

Discussion

Miller's attempt in this action to circumvent G.L. c. 40A, § 17, by characterizing his claim as one for the determination of the validity a municipal ordinance under G.L. 240, § 14A, is no more effective than his attempt to skirt § 17 by way of declaratory judgment under G.L. c. 231A in the Superior Court Action. Miller seeks a declaration from this court that the City lacked the authority to grant the Special Permit on the grounds that the Tower allowed in the Decision is approximately 50 feet taller than is permitted by the Ordinance. General Laws c. 240, § 14A, is not the proper vehicle for Miller's claim. Section 14A provides:

The owner of a freehold estate in possession in land may bring a petition in the land court against a city or town wherein such land is situated, which shall not be open to objection on the ground that a mere judgment, order or decree is sought, for determination as to the validity of a municipal ordinance, by-law or regulation, passed or adopted under the provisions of chapter forty A or under any special law relating to zoning, so called, which purports to restrict or limit the present or future use, enjoyment, improvement or development of such land, or any part thereof, or of present or future structures thereon, including alterations or repairs, or for determination of the extent to which any such municipal ordinance, by-law or regulation affects a proposed use, enjoyment, improvement or development of such land by the erection, alteration or repair of structures thereon or otherwise as set forth in such petition…The court may make binding determinations of right interpreting such ordinances, by-laws or regulations whether any consequential judgment or relief is or could be claimed or not.

Id. "The primary purpose of G.L. c. 240, § 14A, is to provide a procedure for a declaratory judgment that will resolve doubts relating to by-law restrictions or the requirements of a zoning ordinance…The evil to be remedied is a situation where someone may be forced to invest in land and then subsequently find out that there are restrictions." Whitinsville Retirement Soc., Inc. v. Town of Northbridge, 394 Mass. 757 , 762-763 (1985). "The language of G.L. c. 240, § 14A, clearly grants the Land Court jurisdiction over two kinds of cases, validity and extent cases." Banquer Realty Co., Inc. v. Acting Bldg. Com'r of Boston, 389 Mass. 565 , 570 (1983). "[A] validity case, perhaps not surprisingly, asks to what degree, if any, a local zoning restriction purportedly applicable to a defined locus, may be deemed invalid or illegal…[and] an extent case … seek[s] a determination as to the extent which a local zoning ordinance affects a proposed use of land." HRPT Medical Bldgs. Realty Trust v. Boston Zonign Com'n, 20 LCR 94 , 96, aff'd 82 Mass. App. Ct. 1116 (2012).

The Complaint does not seek the kind of relief—a declaration as to the validity or extent of a provision of the Ordinance as it applies to a property—that § 14A is intended to provide. While cast as a petition for a determination of the extent of the applicable Ordinance provisions, the Complaint actually seeks a declaration that the Special Permit was improperly granted under the Ordinance. In other words, Miller seeks not an interpretation of the Ordinance, but a determination of the validity of the particular Special Permit; that is, that the City exceeded its authority by failing to correctly apply its zoning regulations in granting the Special Permit. Simply put, the relief that Miller seeks under G.L. c. 240, § 14A, is not relief that the court is empowered by that statute to grant. This alone is sufficient to allow the City's motion.

The proper avenue for Miller's claim, which seeks not the sort of prospective determination available from G.L. c. 240, § 14A, but rather a determination that the Decision exceeded the City's authority, is an appeal under G.L. c. 40A, § 17. An appeal under § 17 is the "exclusive" remedy of a person aggrieved by a decision of a special permit granting authority. G.L. c. 40A, § 17. Courts of the Commonwealth are "not disposed to circumvent the clear intent of th[e] statute," by allowing zoning appeals to go forward under any other jurisdictional ground. Lincoln v. Board of Appeals of Framingham, 346 Mass. 418 , 420 (1963); see de Araujo Brito v. Provincetown, 361 Mass. 868 , 869 (1972); Cannistra v. Rando, 17 LCR 313 , 314 (2009).

Even if this court were persuaded to let Miller amend the Complaint to state a claim under G.L. c. 40A, § 17, that claim would be barred ab initio for lack of subject matter jurisdiction. Section 17 requires that an appeal of a decision of a special permit granting authority be filed, if at all, within 20 days of the challenged decision being filed with the city clerk. G.L. c. 40A, § 17. Here the Decision was filed with the City on August 13, 2015, and the Complaint in this action was not filed until December 8, 2017, more than two years later. The court is "without jurisdiction to entertain an appeal from a decision of a board of appeals [or other special permit granting authority] if the plaintiff has failed to file a notice of the appeal in the clerk's office within twenty days after the filing of the board's decision." O'Blenes v. Zoning Bd. of Appeals of Lynn, 397 Mass. 555 , 558 (1986).

Miller in fact already brought the appropriate G.L. c. 40A, § 17, appeal of the Decision in the Superior Court Action. Notwithstanding that G.L. c. 240, § 14A, does not imbue this court with the power to grant the relief Miller seeks, even if such relief were possible, the current action is wholly duplicative of the Superior Court Action in which Miller's appeal of the Decision has already been adjudicated. Because Miller seeks exactly the same relief in this action that he did in the Superior Court Action, albeit under different statutory authority, his claim is barred by the doctrine of claim preclusion.

"The doctrine of claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been adjudicated in that action." Heacock v. Heacock, 402 Mass. 21 , 23 (1988). For claim preclusion to bar Miller's claim, "three elements are required: (1) the identity or privity of the parties to the present and prior actions; (2) identity of the cause of action; and (3) prior final judgment on the merits." Gloucester Marine Rys. Corp. v. Charles Parisi, Inc., 36 Mass. App. Ct. 386 , 390 (1994). Just as in the Superior Court Action, Miller seeks to challenge the validity of the Special Permit. The City has been named in both actions and there is a valid final judgment in the Superior Court Action in which the Superior Court determined that Miller did not have standing to challenge the Special Permit. Meeting all of the requirements for claim preclusion, Miller is estopped from pursuing a duplicative appeal of the Special Permit in this action. Miller has filed a notice of appeal in the Superior Court Action and the proper forum in which to pursue his claim is now the Appeals Court. [Note 3]

Miller seeks duplicative relief for a claim already adjudicated by the Superior Court and is therefore estopped under the doctrine of claim preclusion from maintaining this action. Further, even if preclusion did not bar his claim, the relief he seeks is not available under G.L. c. 240, § 14A. Finally, as an appeal under G.L. c. 40A, § 17, is the exclusive remedy for a person aggrieved by a special permit decision, and appeals under that section must be brought within 20 days of the disputed decision being filed with the city clerk, this court lacks jurisdiction to hear Miller's claim which was not filed for more than two years after the Special Permit issued.

Conclusion

For the foregoing reasons, the Defendant's Motion for Judgment on the Pleadings is ALLOWED. Judgment shall enter dismissing Miller's Complaint with prejudice.

SO ORDERED